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Editors --- "Kaurareg People v State of Queensland - Case Summary" [2001] AUIndigLawRpr 18; (2001) 6(2) Australian Indigenous Law Reporter 41

Court and Tribunal Decisions - Australia

Kaurareg People v State of Queensland

Federal Court of Australia (Drummond J)

23 May 2001

[2001] FCA 657

Native title determination — Native Title Act 1993 (Cth) — consent application — Kaurareg People — landward high water mark on islands of Kaurareg Archipelago in the Torres Strait

Facts:

The Kaurareg People sought a determination of their native title rights in respect of seven islands (Muralag, Bedanug (Possession), Zuna (Entrance), Mipa (Turtle), Yeta (Port Lihou), Dumaralag and Horn (Ngurupai)) of the Kaurareg Archipelago in the Torres Strait. In 1922, the Kaurareg People were removed from their islands to Moa Island but returned in 1946 to Ngurupai (Horn). In 1969, they re-established governance with the formation of the Horn Island Village Council. The claimants are the descendants of original occupiers of the islands at the time of Captain Cook’s visit to Bedanug (Possession Island) in 1770.

Five applications for consent determinations of native title were made to give effect to an agreement between the Kaurareg People and the Queensland Government, Ergon Energy Corporation, Telstra Corporation, Torres Strait Council, Torres Strait Regional Authority and various commercial fishing interests.

Held:

1. Kaurareg People, as the traditional owners of each determination area prior to assertion of British sovereignty, are common law title holders.

2. Subject to the determination, the native title rights and interests confer possession, occupation, use and enjoyment of the determination areas on the Kaurareg People to the exclusion of others, except for the area covered by QG6023 of 1998 where the same rights and interests are granted but not to the exclusion of others.

3. The native title rights and interests applied landward of high water mark.

4. The native title rights and interests in the determination area include the rights to:

a. build and live in structures;
b. maintain and manage the area for the Peoples’ benefit;
c. conserve and safeguard the natural resources;
d. determine the use and enjoyment of the area and its natural resources for the social, cultural, economic, religious, spiritual, traditional and customary purposes;
e. determine access to the area by Native Title holders, hunting, fishing and gathering rights;
f. carry out economic activities including to grow, produce and harvest, inherit and dispose of native title to other native title holders.

5. Native title is held subject to:

a. laws of the State of Queensland and the Commonwealth, planning and local laws of the Torres Shire Council;
b. government interests in forestry products and quarry materials;
c. Telstra Corporation Limited in regards to communication facilities;
d. Ergon Energy Corporation Limited as owners of the electricity generation, transmission and distribution facility on Ngurupai (Horn).

6. Title Holders have six months to incorporate a ‘prescribed body corporate’, (s 57(2) Native Title Act). Until this is done the Cape York Land Council Aboriginal Corporation will act as agent of the Torres Strait Regional Authority, as the representative body for the Torres Strait region.